Amphonephong v. State, 02A03–1402–CR–88.
| Decision Date | 27 May 2015 |
| Docket Number | No. 02A03–1402–CR–88.,02A03–1402–CR–88. |
| Citation | 32 N.E.3d 825 |
| Parties | Somchanh AMPHONEPHONG, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
Zachary A. Witte, Fort Wayne, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Eric Babbs, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
, Judge.
[1] Following a jury trial, Somchanh Amphonephong (“Amphonephong”) was convicted of three counts of child molesting, one as a Class A felony and two as Class C felonies.1 At sentencing, Amphonephong informed the trial court that he wanted to appeal his convictions. The trial court told Amphonephong that it would appoint appellate counsel, but it failed to do so. Eighteen months later, Amphonephong filed a petition seeking permission to file a belated notice of appeal. The trial court, acknowledging that it had failed to appoint appellate counsel, granted Amphonephong's petition.
[2] On appeal, Amphonephong challenges only his Class C felony child molesting conviction as charged in Count III, arguing that there is insufficient evidence to support the conviction. The State cross appeals the trial court's order granting Amphonephong permission to file a belated notice of appeal. The State acknowledges that Amphonephong was not at fault for the failure to timely file a notice of appeal but contends that we should reverse the trial court's order and remand for a hearing on Amphonephong's petition because: (1) the trial court did not make an express finding that Amphonephong was not at fault and was diligent in his attempt to file the belated appeal; and (2) Amphonephong failed to specifically allege that he was diligent.
[3] Concluding that the trial court did not abuse its discretion by allowing Amphonephong to file a belated notice of appeal and that there is sufficient evidence to support Amphonephong's Class C felony child molesting conviction as charged in Count III, we affirm.
[4] We affirm.
[5] 1. Whether the trial court erred by granting Amphonephong permission to file a belated notice of appeal.
[6] 2. Whether sufficient evidence supports Amphonephong's Class C felony child molesting conviction as charged in Count III.
[7] On June 5, 2010, then five-year-old J.B. spent the night with her aunt, Geri Westmoreland (“Aunt”), who dated and lived with Amphonephong. That night, J.B. got into bed with Aunt and Amphonephong, and she lay down in between them. Aunt was asleep, J.B. was lying on her back, and Amphonephong was lying on his side and facing J.B. when “[h]e put his hands in [J.B.'s] pants” and “in her underwear.” (Tr. 148). He touched the “[i]nside” of her “private” that she used to “[p]ee.” (Tr. 149). About ten times, J.B. “kept on putting his hands out but he kept on putting his hands back in.” (Tr. 149–50).
[8] The next day, J.B. told her Aunt what Amphonephong had done to her. Aunt then asked her other niece, N.B., who was also five years old, if Amphonephong had done anything to her. N.B. indicated that he had touched her and had sexual intercourse with her on more than one occasion when she was four and five years old. After J.B.'s mother learned what had happened, she called the police. J.B. and N.B. were then interviewed by the Child Advocacy Center, and they each had a physical examination.
[9] The State charged Amphonephong with: Count I, Class A felony child molesting for his act of sexual intercourse against N.B.; Count II, Class C felony child molesting for his act of touching N.B.; and Count III, Class C felony child molesting for his act of touching J.B.
[10] The trial court held a two-day jury trial on June 5–6, 2012. At the beginning of trial, Amphonephong's counsel explained to the jury that Amphonephong was from Laos and that he did not read or write English but understood it.
[11] During the trial, J.B. testified to the facts above, and she testified that she did not remember if Amphonephong's eyes were open or closed. On cross examination, Amphonephong's counsel questioned her about her statements made to the interviewer at the Child Advocacy Center and pointed out inconsistencies between those prior statements and her trial testimony, such as her statements that she tried to pull his hands out of her pants only once and that he was sleeping when he touched her. J.B. acknowledged that she had made those statements to the interviewer. During closing arguments, Amphonephong's counsel argued that there was no evidence that Amphonephong knowingly touched J.B. because she had said that he was asleep. The jury found Amphonephong guilty as charged on all counts.
[12] Thereafter, on July 2, 2012, the trial court held a sentencing hearing and imposed a thirty (30) year sentence for Amphonephong's conviction on Count I, a four (4) year sentence for his conviction on Count II, and a four (4) year sentence for his conviction on Count III. The trial court ordered that his sentences for Counts I and II be served concurrently to each other and consecutively to his sentence for Count III. Thus, the trial court sentenced Amphonephong to an aggregate, executed term of thirty-four (34) years in the Department of Correction.
[13] At the end of the sentencing hearing, the trial court informed Amphonephong that he had a right to appeal, and Amphonephong told the trial court that he wanted to appeal his convictions. The trial court told Amphonephong that it would appoint the Allen County Public Defender to perfect an appeal, and it asked his trial counsel if he “would be good enough just to make sure that the time lines [were] met initially within the thirty days” while it “promptly” notified the public defender. (Sent. Tr. 10
). The trial court, however, did not appoint a public defender for Amphonephong, and no one filed a notice of appeal within thirty days of Amphonephong's sentencing.
[14] Eighteen months after sentencing, on January 13, 2014, Amphonephong tendered, with the Clerk of our Court, a pro se petition for permission to file a belated notice of appeal. Our Clerk's office sent Amphonephong a letter, informing him that any petition to file a belated notice of appeal needed to be filed with the trial court.
[15] Thereafter, on February 13, 2014, Amphonephong filed, with the trial court, a pro se petition for permission to file a belated notice of appeal. In his petition, he asserted that the trial court should grant his petition because: (1) he had notified the trial court that he wanted to appeal but that the public defender had not filed his appeal; and (2) he has a “very limited understanding of English and cannot read but a little bit [of] English” as he “is of Asian origin” from Laos and had to “get a jailhouse lawyer to help [him] file this motion.” (App. 198). Amphonephong also filed a motion to proceed in forma pauperis and an information sheet for the public defender's office and stated that he “want[ed] help with [his] appeal[.]” (App. 207).
[16] On March 3, 2014, the trial court sent Amphonephong a letter, which provided:
(App. 274) (emphasis added). Subsequently, on May 15, 2014, the trial court, without holding a hearing, granted Amphonephong's petition to file a belated notice of appeal and issued an order, which provided:
Defendant having filed his Verified Petition for Permission to File Belated Appeal on February [1]3, 2014 and further, Defendant having failed t[o] respond to the Court's letter of March 3, 2014, regarding the need or desire to be represented by public defender. The Court now grants Defendant[']s Petition to File Belated Appeal and further appoints the Public Defender of Allen County to perfect said appeal at public expense.
(App. 183, 275). On May 28, 2014, Amphonephong filed his notice of appeal. He now belatedly appeals one of his three child molesting convictions.
[17] On appeal, Amphonephong challenges the sufficiency of the evidence to support his Class C felony child molesting conviction as charged in Count III. The State has filed a cross-appeal, challenging the trial court's grant of Amphonephong's petition to file a belated appeal. Because the State's issue is potentially dispositive, we will first address this cross-appeal issue.
[18] The State contends that the trial court erred by granting Amphonephong permission to file a belated notice of appeal because: (1) the trial court did not comply with Indiana Post–Conviction Rule 2(1)
; and (2) Amphonephong did not allege or prove that he was diligent.
[19] Amphonephong did not file a reply brief or otherwise respond to the State's allegation on cross-appeal that the trial court erred by granting him permission to file a belated notice of appeal. “In such a circumstance, if we find prima facie error, we may reverse.” Townsend v. State, 843 N.E.2d 972, 974 (Ind.Ct.App.2006)
, trans. denied. “In this context, prima facie is defined as ‘at first sight, on first appearance, or on the face of it.’ ” Id.
[20] Turning to the State's argument, we note that Indiana Post–Conviction Rule 2(1)
provides, in relevant part:
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